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California’s Prop 65 for E Cig and E Liquid Industry

California’s Prop 65 for E Cig and E Liquid Industry

Lawsuits have recently been filed in California against e-liquid companies for violating Proposition 65 (Prop 65), which requires businesses to provide “clear and reasonable” warnings when they “expose” Californians to listed chemicals identified by the State to cause cancer or reproductive harm. (Health & Safety Code, § 25249.6.) As such it is important to understand the warning requirements.

California's Prop 65 for E Cig and E Liquid Industry

Prop 65 – E Cig / E Liquid Industry

California maintains a Prop 65 list of chemicals known to the State to cause cancer or reproductive toxicity that it updates on at least a yearly basis (currently, there are over 800 chemicals on the list). The list can be viewed at: http://www.oehha.ca.gov/prop65/prop65_list/Newlist.html.

Notable compounds that are on the Proposition 65 list are: Acetaldehyde; Formaldehyde; and Nicotine. Currently, Proposition 65 contains “safe harbor” warning language for consumer products:

For carcinogens: “WARNING: This product contains a chemical known to the State of California to cause cancer.”

For reproductive toxins: “WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.”

(27 C.F.R. §§ 25601, 25603.2.[1])

The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (“OEHHA”) started the process of repealing and replacing the warnings provision. There have been several version of draft regulations issued that  would require more forceful warnings on consumer products that specifically identify at least one toxic chemical, and both food and consumer product warnings would need a hyperlink to OEHHA’s Proposition 65 website.

They would also advance the “right-to-know” purposes of the statute and provide more specific guidance on the content of safe harbor warnings for a variety of exposure situations, and corresponding methods for providing those warnings. The proposed regulations would also add a specific section to the regulations addressing the relative responsibilities for providing warnings for businesses in the chain of commerce versus retail sellers of a given product.

Key proposed changes to warning content are:

“Can expose”: Consumer product warnings would need to state the product “can expose” the individual to a listed chemical, rather than that it “contains” the listed chemical, as currently required.

Identification of chemicals: The proposed revision requires warnings to name the listed chemical for which the warning is being provided.

Warning symbol: The new proposal requires a warning symbol in all product warnings, in addition to using the signal word “WARNING”:

Hyperlinks: Almost all warnings after the effective date will require a hyperlink to an OEHHA Proposition 65 website.

Additional Languages: Existing regulations require only English warnings, but the new proposal would require warnings in non-English languages where product labeling contains information in alternative languages or at locations where signs are posted in those languages.

Exceptions for On-Product Warnings: There are exceptions to some of the above requirements for on-product warnings. For those products, Businesses may use a shortened warning on product labels, using the symbol described above, the word “WARNING” and website reference noted above, but with only the words “Cancer,” “Reproductive Harm,” or “Cancer and Reproductive Harm,” depending on the reason the chemical requires a warning.

The proposed regulations provide for a two-year delay before they are effective. They would provide a sell-through period of unlimited duration for products manufactured prior to the effective date that comply with the previous version of the rule, saving businesses the burden and expense of relabeling or destroying existing inventories.

[1] http://oehha.ca.gov/prop65/law/pdf_zip/RegsArt6.pdf

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